U.S. v. Klauck, 47 M.J. 24 (C.A.A.F. 1997)

Court and Agency Decisions and Orders (including case law)

This U.S. Court of Appeals for the Armed Forces (CAAF) decision affirmed the conviction of an HIV positive service member for violating a lawful order and aggravated assault. Klauck was sentenced to forfeiture of $500 pay per month for six months, confinement for ninety days, reduced pay grade, and a bad-conduct discharge. Klauck had appealed his conviction for aggravated assault on grounds that the government failed to present evidence that vaginal intercourse with a condom and without ejaculation constituted a "means likely to produce" grievous bodily harm or death.

Prior to the commission of the offenses, Klauck had tested positive for HIV and had been counseled and issued a "safe-sex" order. The order required him to use a condom in sexual relations with others, to inform any sexual partner of his HIV status, and to inform any sexual partner that the use of a condom would not guarantee that HIV would not be transmitted.

Klauck thereafter had sexual intercourse with a consenting female partner, Petty Officer M, but without informing her of his HIV status or that a condom might not prevent transmission of the virus. Petty Officer M told him he should use a condom, which he allegedly did, and he did not ejaculate because the intercourse was interrupted by another Petty Officer. The CAAF said, "The fact that a male uses a condom during sexual intercourse is not a defense to assault with a means or force likely to produce death or grievous bodily harm," and the probability of infection need only be "more than merely fanciful, speculative or remote possibility." The CAAF justified affirming the convictions by the fact that Klauck knew that use of a condom might not prevent transmission of HIV, and that there was more than a remote possibility that death or grievous bodily harm could occur to his partner through transmission of HIV.

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